McGregor v. Pollard
32 S.W. 640
Mo.
1895
Check Treatment
Brace, P. J.

It аppears from the evidence in this case that in a proceeding in partition in the circuit court of St. Charles county between the heirs of Matthew N. Clay, deceased, there wаs set off to his daughter, Nancy J., certain lands in said county in the commissioners’ report made to said court on the ‍‌​‌​​​​​​‌‌​‌‌‌​‌‌‌​​​‌​​‌​​‌‌‌‌​​‌​​‌​‌​‌‌‌​‌‌​‍twenty-fourth of September, 1872, as her share as one of the heirs at law of her said father; that afterward, in 1876,the said Nancy J. intermarried with the defendant James H. Pollard; that afterward, to wit, on the twenty-seventh day of July, 1878, the said James H. Pollard and his wife, the *333said Nancy J., by warranty deed duly executed, conveyed said lands to one Peter Rummert for the consideration of $3,300, $1,000 of which was paid in cash, and for the remainder the said Rummert executed his promissory note of that date for the sum of $2,300 payable to the order of the said J ames Pollard within ‍‌​‌​​​​​​‌‌​‌‌‌​‌‌‌​​​‌​​‌​​‌‌‌‌​​‌​​‌​‌​‌‌‌​‌‌​‍two yeаrs after date with interest from March 1, 1879, and on the same day the said Rummert and wife, parties of thе first part, conveyed said lands by deed of trust to H. S. Clay, party of the second part, to securethepayment of the said promissory note to the said James Pollard, party of the third рart.

That afterward, to wit, in August, 1887, the said Nancy J. died intestate without lineal descendants, and on the fifth dаy of March, 1888, letters of administration on her estate were granted to her sister, the plaintiff, Jоsephine McGregor, who as such on the seventeenth day of March, thereafter, instituted this suit charging in her petition “that the whole of the proceeds of the sale of said lands so bеlonging to the said Nancy J. Pollard in her own right as aforesaid was received by the said respоndent James H. Pollard, and, without the written consent of the said Nancy J. Pollard, was by ‍‌​‌​​​​​​‌‌​‌‌‌​‌‌‌​​​‌​​‌​​‌‌‌‌​​‌​​‌​‌​‌‌‌​‌‌​‍him converted аnd appropriated to his own use and benefit and never accounted for or paid to the said Nancy J. Pollai’d or anyone else.” That of the moneys so converted he used the sum of $1,500 in paying off certain mortgages or deeds of trust which were liens upon land owned by the defendant and described in the petition, and that he used the further sum of $1,000 in making improvements on sаid lands, and prayed for judgment for the amount of the proceeds of said lands so converted, and that the said sums of $1,500 and $1,000 be declared a lien and charge upon said lands of the defendant.

The case was tried as a proceeding in equity. The *334court found from the evidence that the defendant received of the proсeeds of the sale of the land of the said Nancy J. the sum of $1,000, which he had converted to his own use without her written consent, and that, afterward, in like manner, he had received the further sum of $250 of such proceeds which he had used in the improvement of the dwelling house on his own land; rendеred judgment in favor of the ‍‌​‌​​​​​​‌‌​‌‌‌​‌‌‌​​​‌​​‌​​‌‌‌‌​​‌​​‌​‌​‌‌‌​‌‌​‍plaintiff for the sum of $1,250, and decreed that $250 thereof be made a sрecial lien and charge upon the defendant’s said lands; awarded special exеcution against said lands for that amount, and general execution for the remainder! Therеupon the defendant moved to set aside the judgment and for new trial, which motion being overruled he brings the case here, upon exceptions duly saved, by writ of error.

1. On the threshold of the inquiry in this case is a question of jurisdiction that seems to have been overlooked by counsel, but whiсh we can not ignore, and which will preclude us from determining the controversy . While the petition demanded the whole amount of the proceeds of the wife’s land, an amount that would bring the case within the jurisdiction of this court, the judgment was for $1,250 only, an amount ‍‌​‌​​​​​​‌‌​‌‌‌​‌‌‌​​​‌​​‌​​‌‌‌‌​​‌​​‌​‌​‌‌‌​‌‌​‍within the jurisdiction of the St. Louis cоurt of appeals. There was no evidence given upon the trial upon which the plaintiff could claim a judgment for a greater amount. . She takes no exception to the judgmеnt for that amount, but stands upon it, and asks that it be affirmed. The defendant alone complains and brings the case here for review, and the only amount in dispute is the amount of the judgment. Reichenbach v. Benefit Ass’n, 112 Mo. 24; Anchor Milling Co. v. Walsh, 97 Mo. 287; State ex rel. v. Lewis, 96 Mo. 146; Kerr v. Simmons, 82 Mo. 269; State ex rel. v. Court of Appeals, 87 Mo. 569.

*3352. Nor doеs this case involve the title to real estate. No question of title to real estate is rаised in the case. The plaintiff seeks to simply charge a part of her demand on cеrtain real estate belonging to the defendant, but title thereto, or to any land, is not affected by the adjudication. In such case, title to real estate is not involved within the meaning of thе constitution so as to give this court jurisdiction. “It is not enough that the judgment,-when carried into exeсution, will affect the title to land. The title must be involved in the suit itself, and be a matter about which there is a contest.” Bailey v. Winn, 101 Mo. 649; Bobb v. Wolff, 105 Mo. 52; Syenite Granite Co. v. Bobb, 97 Mo. 46.

As it appears from the record that this cause is within the jurisdiction of the St. Louis court of appeals, it will be transferred to that .court for determination.

All concur.